This Revolear Master Subscription and Services Agreement (“MSSA”) is effective as of the effective date of an applicable signed order form (“Order Form” and such date the “Effective Date”) and is by and between Revolear Corporation, a Delaware corporation with its principal address at 548 Market St, PMB 69725, San Francisco, CA 94104 (“Revolear”), and the customer (i) set forth on the Order Form or (ii) who registers for the Services on a free trial basis (“Trial Services”) and accepts this MSA (each, a “Customer”) (each a “Party” and together the “Parties”). In the event of any inconsistency or conflict between the terms of the MSA and the terms of any Order Form, the terms of the Order Form control. If Customer is provided with access to the Services on a free trial basis, the section of this MSSA entitled “Free Trial Services” will govern such access and, unless as otherwise indicated on an applicable Order Form, certain of Revolear’s obligations under this MSSA will not apply, as further described below.
Revolear has developed and makes available an digital platform for structuring, proposing, negotiating, approving and executing commercial agreements (the “Revolear Service”), which is comprised of certain cloud-based functionality (the “Revolear Cloud”) and client side software (the “Client Software”). Customer desires to use the Revolear Service to augment its existing sales capabilities.
1.1. The following terms, when used in this MSSA will have the following meanings:
“Confidential Information” means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Data” means any data, content or materials that Customer submits to the Revolear Cloud, including from Third Party Platforms, and any documents or communications exchanged between Customer and an External User via the Revolear Service.
“Customer Org” means the Customer’s tenancy within the Revolear Service, with its Customer Data and Positioned User functionality.
“Documentation” means Revolear’s standard user guides for the Revolear Service, as published to Customers at https://success.revolear.com.
“External User” means anyone with whom the Customer shares its commercial content, including but not limited to proposals, quotes and sales material, via the Revolear Service, including their prospects, customers, business partners and advisors.
“Order Form” means an order form that sets forth the applicable Revolear Service to which Customer is subscribing, pricing therefor and subscription term, and that references this MSSA and is mutually executed by the parties.
“Positioned User” means anyone that Customer assigns to a named position within its Customer Org of the Revolear Service, including its employees, representatives, consultants, contractors or agents.
“Professional Services” means implementation or other professional services that Revolear furnishes to Customer related to the Revolear Service, as set forth in an Order Form or statement of work that references this MSSA and is mutually executed by the parties (collectively, “SOW”).
“Third Party Platform” means any product, add-on or platform not provided by Revolear that Customer elects to use with the Revolear Service.
2. Revolear Service
2.1. Provision of Revolear Service. Subject to this MSSA, Revolear will make the Revolear Service available to Customer pursuant to this MSSA and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Revolear Service (including a non-sublicensable license to install and use the Client Software) for its business purposes. Customer may permit Users to use the Revolear Service on its behalf. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the Revolear Service and for their compliance with this MSSA.
2.2. Data Security.
(a) With respect to the Revolear Cloud, Revolear will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. In furtherance of the foregoing, Revolear will maintain the administrative, physical and technical safeguards to protect the security of Customer Data that are described in the Revolear security page located at https://trust.revolear.com (the “Security Page”) posted as of the Effective Date (and as the Security Page may be updated by Revolear in a manner that does not materially decrease the applicable protections).
(b) To the extent that Revolear processes any Personal Data (as defined in the DPA referenced below) contained in Customer Data that is subject to Data Protection Legislation (as defined in the DPA), on Customer’s behalf, in the provision of the Revolear Service, the Data Processing Addendum (“DPA”) currently available at https://www.revolear.com/legal/dpa is hereby deemed incorporated herein by reference.
2.3. Customer Responsibilities. Customer acknowledges that Revolear’s provision of the Revolear Service is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form), and Customer will provide all such cooperation in a diligent and timely manner. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Revolear Service and notify Revolear promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Revolear Service. Customer will be responsible for the content of all communications sent by its Users via the Revolear Service.
2.4. Professional Services. If applicable, Revolear will perform Professional Services as described in an Order Form or SOW, which may identify additional terms or milestones for the Professional Services. Customer will give Revolear timely access to Customer Materials reasonably needed for Professional Services, and Revolear will use the Customer Materials only for purposes of providing Professional Services. Customer may use code or other deliverables that Revolear furnishes as part of Professional Services only in connection with Customer’s authorized use of the Revolear Service under this MSSA.
3.1. Fees. Customer will pay Revolear the fees set forth in the applicable Order Form. Customer will pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice (the “Payment Period”), unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in any applicable Order Form, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. If Customer disputes an invoice in good faith, it will notify Revolear within the Payment Period and the parties will seek to resolve the dispute as soon as reasonably practicable. Revolear may provide Customer with written notice of a change or increase in pricing for such Order Form at least sixty (60) days prior to the end of the then-current subscription term, and such modified pricing will become effective thereafter at the time of the renewal.
3.2. Late Payment. Revolear may suspend access to the Revolear Service immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. If Revolear has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Revolear.
3.3. Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Revolear. Customer will not withhold any Taxes from any amounts due to Revolear.
4. Proprietary Rights
4.1. Proprietary Rights. As between the parties, Revolear exclusively owns all right, title and interest in and to the Revolear Service, Professional Services deliverables, System Data and Revolear’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data and Customer’s Confidential Information. “System Data” means data collected by Revolear regarding the Revolear Service that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Revolear Service. Subject to this MSSA, Revolear hereby grants Customer a non-exclusive, non-sublicensable right and license to use the Professional Services deliverables solely as part of its permitted use of the Revolear Service.
4.2. Feedback. Customer may from time to time provide Revolear suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Revolear Service. Revolear will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Revolear will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services. All Feedback is provided “AS IS” and Revolear will not publicly identify Customer as the source of Feedback without Customer’s permission.
4.3. Machine Learning. Customer acknowledges that a fundamental component of the Revolear Service is the use of machine learning for the purpose of improving and providing Revolear’s products and services. Notwithstanding anything herein, Customer agrees that Revolear is hereby granted the right to retain and use (during and after the term hereof) Customer Data to train its algorithms internally through machine learning techniques for such purpose.
5. Confidentiality; Restrictions
5.1. Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this MSSA and it will not disclose the same to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this MSSA; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither party will disclose the terms of this MSSA to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
5.2. Technology Restrictions. Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Revolear Service; (b) attempt to probe, scan or test the vulnerability of the Revolear Service, breach the security or authentication measures of the Revolear Service without proper authorization or wilfully render any part of the Revolear Service unusable; (c) use or access the Revolear Service to develop a product or service that is competitive with Revolear’s products or services or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, (sub)license, or assign the Revolear Service or otherwise offer the Revolear Service on a standalone basis, use the Client Software in an application service provider or managed service provider environment, or copy the Client Software onto any public or distributed network; or (e) otherwise use the Revolear Service in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.
6. Warranties and Disclaimers
6.1. Mutual. Each party warrants that (a) it has the legal power and authority to enter into this MSSA and (b) it will use industry-standard measures to avoid introducing viruses or other malicious code into the Revolear Service.
6.2. Revolear. Revolear warrants that (a) the Revolear Service will perform materially as described in the Documentation and Revolear will not materially decrease the overall functionality of the Revolear Service during the applicable subscription term (the “Performance Warranty”), and (b) any Professional Services will be provided in a professional and workmanlike manner (the “Professional Services Warranty”). Revolear will use reasonable efforts to correct a verified breach of the Performance Warranty or Professional Services Warranty reported by Customer. If Revolear fails to do so within 30 days after Customer's warranty report, then either party may terminate the applicable Order Form as it relates to the non-conforming Revolear Service or Professional Services, in which case Revolear will refund to Customer any prepaid subscription fees for the terminated portion of the applicable subscription term (for the Performance Warranty) or for the non-conforming Professional Services (for the Professional Services Warranty). To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Revolear Service or 30 days after delivery of the relevant Professional Services. These procedures are Customer’s exclusive remedies and Revolear’s sole liability for breach of the Performance Warranty or Professional Services Warranty.
6.3. Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Revolear to use the same as contemplated hereunder.
6.4. DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. REVOLEAR DOES NOT REPRESENT OR WARRANT THAT THE REVOLEAR SERVICE WILL BE ERROR-FREE AND CUSTOMER ACKNOWLEDGES THAT ANY INFORMATION PROVIDED VIA THE REVOLEAR SERVICE DOES NOT CONSTITUTE PROFESSIONAL ADVICE OR COUNSEL. REVOLEAR IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS AND DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH.
6.5. PILOT PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH REVOLEAR WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “PILOT PRODUCTS”) OFFERED BY REVOLEAR. THE PILOT PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. REVOLEAR DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL OR SUPPORT COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR REVOLEAR MAY TERMINATE CUSTOMER’S ACCESS TO THE PILOT PRODUCTS AT ANY TIME.
7.1. Indemnity by Revolear. Revolear will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Revolear Service as permitted hereunder infringes or misappropriates a patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Revolear) in connection with any such Claim; provided that (a) Customer will promptly notify Revolear of such Claim, (b) Revolear will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Revolear may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Revolear in connection therewith. If the use of the Revolear Service by Customer has become, or in Revolear’s opinion is likely to become, the subject of any claim of infringement, Revolear may at its option and expense (i) procure for Customer the right to continue using and receiving the Revolear Service as set forth hereunder; (ii) replace or modify the Revolear Service to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. Revolear will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) designs, guidelines, configurations, plans or specifications provided by Customer; (B) use of the Revolear Service by Customer not in accordance with this MSSA; (C) modification of the Revolear Service by or on behalf of Customer; (D) Customer Data, (E) the combination, operation or use of the Revolear Service with other products or services where the Revolear Service would not by itself be infringing, or (F) with respect to the Client Software, any failure by Customer to use a non-infringing workaround or modification that does not materially adversely affect the functionality or availability of the Revolear Service (clauses (A) through (F), “Excluded Claims”). This Section states Revolear’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
7.2. Indemnification by Customer. Customer will defend Revolear against any Claim made or brought against Revolear by a third party arising out of the Excluded Claims, and Customer will indemnify Revolear for any damages finally awarded against Revolear (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Revolear will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Revolear’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Revolear of all liability) and (c) Revolear reasonably cooperates with Customer in connection therewith.
8. Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF SECTION 5 OR INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS MSSA FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM (THIS CLAUSE (B), THE “ORDINARY CAP”). NOTWITHSTANDING THE FOREGOING, REVOLEAR’S AGGREGATE LIABILITY FOR BREACH OF SECTION 2.2 (INCLUDING THE DPA) AND/OR SECTION 5.1 IN RELATION TO CUSTOMER DATA WILL NOT EXCEED TWO TIMES (2X) THE ORDINARY CAP.
9.1. Term. The term of this MSSA will commence on the Effective Date and continue until terminated as set forth below. The initial term of each Order Form will begin on the Order Form Effective Date of such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
9.2. Termination. Each party may terminate this MSSA upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this MSSA or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this MSSA or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
9.3. Survival. Upon expiration or termination of this MSSA (a) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to payment, proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below, and (b) each party will return or destroy, at the other party’s option, any Confidential Information of such party in the other party’s possession or control. Upon expiration or termination of an Order Form, Customer will destroy any copies of Client Software provided under such Order Form.
10.1. Insurance. Revolear will, during the term of this MSSA, maintain in force the following insurance coverage at its own cost and expense: (a) Statutory Worker’s Compensation and Employer’s Liability as required by state law with a minimum limit of $1,000,000 each accident / $1,000,000 each disease / $1,000,000 policy limit per occurrence, Disability and Unemployment Insurance, and all other insurance as required by law, including Employer’s Liability Insurance with limits of no less than $1,000,000 per occurrence, or any amount required by applicable law, whichever is greater; (b) Commercial General Liability, on an occurrence basis, including premises-operations, product completed-operations, broad form property damage, contractual liability, independent contractors and personal liability, with a minimum combined single limit of $1,000,000 per occurrence; and (c) Professional Errors and Omissions and Cyber Liability coverage covering the Revolear Service, with coverage limits of not less than $1,000,000 per claim or per occurrence/$1,000,000 aggregate, placed either on an “occurrence” basis or on a “claims made” basis.
10.2. Publicity. Customer agrees that Revolear may refer to Customer’s name and trademarks in Revolear’s marketing materials and website; however, Revolear will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
10.3. Assignment. Neither party hereto may assign this MSSA without the other party’s prior written consent, except that either party may assign this MSSA without consent to a successor to all or substantially all of its assets or business related to this MSSA. Any attempted assignment by either party in violation hereof will be null and void. Subject to the foregoing, this MSSA will be binding on the parties and their successors and assigns.
10.4. Amendment; Waiver. No amendment or modification to this MSSA, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this MSSA will not be deemed a waiver of future enforcement of that or any other provision.
10.5. Independent Contractors. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
10.6. Unenforceability. If a court of competent jurisdiction determines that any provision of this MSSA is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this MSSA will remain in full force and effect and bind the parties according to its terms.
10.7. Governing Law. This MSSA will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This MSSA will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
10.8. Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the parties must be sent to the respective address set forth in the signature blocks below, or such other address designated pursuant to this Section.
10.9. Entire MSSA. This MSSA comprises the entire agreement between Customer and Revolear with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Revolear, its agents or employees will create a warranty or in any way increase the scope of the warranties in this MSSA.
10.10. Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.